Since administrative agencies do not enforce the criminal laws, they do not have to provide criminal
law due process protections. Instead, they are usually given broad authority to use their expertise
to develop the most effective strategies for protecting the public; they may change these strategies
as conditions change or as they get better information about their effectiveness. For example, state
health departments are charged with protecting the citizens from communicable diseases. Rather
than the legislature deciding which diseases pose a threat to the public health, the health
department is given the authority to establish regulations on communicable disease control,
including the list of communicable diseases subject to reporting and other public health
regulations. If individuals or businesses sue the health department to challenge these regulations,
the courts will generally defer to the agency's expertise and support the regulations even when
there is a controversy over the best way to solve the problem. Someone contesting the agency's
action must show that it is arbitrary or capricious, or is a sham designed to use public health
powers for improper purposes. The petitioner is not allowed to second guess the policy decisions
behind the agency's actions. As one court held, in a case contesting the right of the health
department to close gay bathhouses to prevent the spread of HIV:
... defendants and the intervening patrons challenge the soundness of the scientific
judgments upon which the Health Council regulation is based .... They go further and
argue that facilities such as St. Mark's, which attempts to educate its patrons with written
materials, signed pledges, and posted notices as to the advisability of safe sexual
practices, provide a positive force in combating AIDS, and a valuable communication link
between public health authorities and the homosexual community. While these arguments
and proposals may have varying degrees of merit, they overlook a fundamental principle of
applicable law: "It is not for the courts to determine which scientific view is correct in
ruling upon whether the police power has been properly exercised. The judicial function is
exhausted with the discovery that the relation between means and end is not wholly vain
and fanciful, an illusory pretense.”[City of New York v New St. Mark's Baths, 497 NYS 2d
979, 983 (1986)]
The classic smallpox vaccination case was decided on the issue of whether an aggrieved citizen
could challenge the board of health's policy decision to require smallpox vaccinations.[Jacobson v.
Commonwealth of Massachusetts, 197 U.S. 11 (1905)] The administrative rights of public health
agencies are not without limit, however. Public health laws must be applied fairly. They cannot, for
example, be a subterfuge for discrimination against racial or ethnic groups, who must be given
equal protection under the U.S. Constitution. The courts have rejected laws that subjected the
Chinese community to special health regulations without providing evidence that Chinese people
were at any greater risk of contracting or spreading disease.
If a public health law's purpose and enforcement is rationally related to protecting the public's
health, it will be constitutional even if it has a differential impact on different groups. Laws for
controlling the spread of gonorrhea are constitutional, even if the disease is more prevalent in a
specific racial or ethnic group. Laws against prostitution have been found constitutional even though
they were primarily enforced against women. In the extreme case, laws requiring the testing of
pregnant women for communicable diseases that affect the fetus, such as syphilis, are
constitutional even though they affect only women. As the U.S. Supreme Court has pointed out in
other cases involving pregnancy, the laws would also apply to pregnant men.
Public health laws also must treat state residents the same as out-of-state residents. For example,
courts have struck down several laws that imposed different sanitary restrictions on out-of-state
milk processors. Even if the restrictions are the same for instate and out-of-state businesses, the
courts strike down laws that unnecessarily discriminate against out-of-state businesses. For
example, a requirement that milk must be processed and delivered within 24 hours would put out-of-
state dairies out of business. This law would be improper if there was no evidence that the 24-hour
rule was necessary to protect the public's health.
